Shyam Chandra Singh Vs. Baldeo and ors. - Court Judgment

LegalCrystal Citation

legalcrystal.com/471994

Court

Allahabad

Decided On

Nov-19-1912

Judge

Banerji, J.

Reported in

17Ind.Cas.467

Appellant

Shyam Chandra Singh

Respondent

Baldeo and ors.

Excerpt:mortgage by conditional sale - foreclosure--limitation--regulation xvii of 1835--limitation act (xv of 1877), schedule ii, article 147, scope of--transfer of property act (iv of 1832). - - this contention seems to me to be well founded. therefore, the plaintiff's right to apply for foreclosure proceedings became extinct on march 31st, 1878. on that date no suit for foreclosure could be brought in respect of a mortgage like the one now in question......such suits for foreclosure as, under the law then in force, could be brought, as for instance, a suit to foreclosure a mortgage made in the english form, the article was evidently not enacted to provide for the case of foreclosure proceedings under the regulation. consequently, the plaintiff could not take the benefit of that article. his right to make an application for foreclosure having come to an end by reason of efflux of time on march 31st, 1878, the subsequent enactment of the transfer of property act could not resuscitate that right and as he could not take possession without obtaining foreclosure in accordance with the provisions of the regulation, his present claim could not be sustained. on this ground, i would affirm the decree of the courts below and dismiss the appeal.....

Judgment:

1. This was a suit for foreclosure of a mortgage by way of conditional sale, dated May 6th, 1865. The amount secured by the mortgage was Rs. 99-13-0. The document provided that the said amount should be re-paid with interest on Chait Sudi 15th of the following year, corresponding to March 31st, 1866. The defendants Nos. 1 to 3 are heirs of the mortgagor. The defendants Nos. 4 to 5 are in possession of the mortgaged property under a foreclosure decree obtained subsequently to the date of the plaintiff's mortgage. The present suit was brought on August 4th, 1910, and by it the plaintiff claimed foreclosure of the mortgage and possession of the property comprised in it. The Court of first instance dismissed the suit on the ground that it was time barred and this decree has been affirmed by the lower Appellate Court. The Courts below were of opinion that as the plaintiff mortgagee did not take possession within 12 years of March 31st, 1865, the claim was barred by limitation. This appeal has been preferred by the plaintiff and it is contended that as the plaintiff could not take possession without obtaining foreclosure proceedings, the fact of his not having taken possession within 12 years, did not deprive him of his right to foreclose the mortgage and to sue for possession. This being a mortgage to which Regulation XVII of 1806 applied, the procedure for foreclosing it was that prescribed by Section 8 of the Regulation. Until the mortgage was foreclosed in accordance with the Regulation, the mortgagee's right to possession did not accrue. This was held by their Lordships of the Privy Council in Hub Ali v. Wazir-un-nissa 28 A. 496 : 3 C.L.J. 601 : 10 C.W.N. 778 (P.C.) : 3 A.L.J. 712 : 1 M.L.T. 297: 33 I.A. 107. In that case, their Lordships observed that 'there was no right to take possession of the property without the procedure prescribed by law.' So that, unless foreclosure proceedings were taken under the Regulation, the mortgagee had no right to take possession. If the mortgage-deed had provided for possession, the mortgagee would have been bound to sue for possession within twelve years and if he did not do so, his right as mortgagee would become extinct and the result would have been that he could not subsequently bring a suit for foreclosure. This was the case in Srinath Das v. Khetter Mohun Singh 16 C. 693 : 16 I.A. 85. The distinction between a case in which the mortgage-deed provided for possession and a case in which the mortgagee could only take possession after getting the mortgage foreclosed by taking foreclosure proceedings under Regulation XVII OF 1806, was pointed out in Modun Mohun Chawdhri v. Ashad Ally Beparee 10 C. 68 : 13 C.L.R. 51. It seems to me, therefore, that the ground on which the Courts below dismissed the suit cannot be supported. The learned Advocate for the respondents, however, contends, that, as, before the passing of the Transfer of Property Act, no suit for foreclosure could be brought and the only remedy of a mortgagee under a mortgage by way of conditional sale was to take foreclosure proceedings under Regulation XVII of 1806, the plaintiff could not maintain his suit unless he had taken those proceedings within the period of limitation applicable thereto, that the period of limitation for such proceedings was 12 years, and as no proceedings was taken within 12 years of March 31st, 1853, the right to foreclosure had become extinct before the Transfer of Property Act came into operation, and the passing of that Act could not revive it. This contention seems to me to be well founded. It has been held by the Calcutta High Court and by this Court, that the limitation for an application for foreclosure under Regulation XVII of 1806 was 12 years. I need only refer to the case of Karimdad Khan v. Mustaqim Khan 26 A. 4 : A.W.N. (1903) 175 in which other cases on the point are cited. Therefore, the plaintiff's right to apply for foreclosure proceedings became extinct on March 31st, 1878. On that date no suit for foreclosure could be brought in respect of a mortgage like the one now in question. It was only upon the enactment of Act IV of 1882 (The Transfer of Property Act) that a suit for foreclosure was provided for. It is true that before the date above-mentioned, Act XV of 1877 was enacted and Article 147 of the Schedule to that Act provided a limitation of 60 years for a suit for foreclosure or sale. But that evidently applied not to foreclosure proceedings under the Regulation mentioned above but to such suits for foreclosure as, under the law then in force, could be brought, as for instance, a suit to foreclosure a mortgage made in the English form, The Article was evidently not enacted to provide for the case of foreclosure proceedings under the Regulation. Consequently, the plaintiff could not take the benefit of that Article. His right to make an application for foreclosure having come to an end by reason of efflux of time on March 31st, 1878, the subsequent enactment of the Transfer of Property Act could not resuscitate that right and as he could not take possession without obtaining foreclosure in accordance with the provisions of the Regulation, his present claim could not be sustained. On this ground, I would affirm the decree of the Courts below and dismiss the appeal with costs and I order accordingly.